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The U.S. Embassy in Caracas has suspended business and tourist visa processing for first-time applicants, due to staffing shortages that have forced the embassy to curb services.
Key points:
Background: The embassy said the service cutbacks are the result of the Venezuelan Foreign Ministry’s refusal to issue visas to embassy personnel and to technicians who maintain the embassy’s computer system. “For many months, we have not had sufficient embassy personnel to handle the existing workload in Venezuela and, despite our best efforts, large backlogs of visa applications have accumulated,” officials said in a statement posted to the embassy website. The statement said that full visa services would resume once staff members receive the visas they need and begin working.
BAL Analysis: The change could have a negative impact on Venezuelans, including oil and gas professionals, seeking business opportunities in the U.S. On top of that, even when full services are restored, embassy staff will be faced with a backlog of visa applications and possibly a raft of new applications that could cause significant processing delays.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
Tennessee has approved a law making E-Verify mandatory for all employers with 50 or more employees, effective Jan. 1, 2017.
Key provisions:
Background: Under the current Tennessee Lawful Employment Act, employers may choose between enrolling in E-Verify or following specified document retention requirements. The amendments to the Act will eliminate this choice and mandate E-Verify, exempting only employers with fewer than 50 employees.
E-Verify is a federal database that allows participating employers to confirm the work eligibility of new hires. It is voluntary under federal law for employers that are not federal contractors. Though the majority of states do not require employers to use it, as of last year, nine states require E-Verify for all employers of a certain size and 11 states require the use of E-Verify by public employers only.
BAL Analysis: Tennessee employers should enroll in E-Verify as early as possible and review their documentation and policies to make sure they are fully compliant. Enrollment instructions can be found on the U.S. Citizenship and Immigration Services website.
U.S. Citizenship and Immigration Services has announced that in June it will only accept employment-based adjustment-of-status applications based on the Application Final Action Dates chart.
The Dates for Filing chart, published in the State Department’s June Visa Bulletin, will not apply. Employment-based immigrants must follow the Application Final Action Dates chart (below) to determine if they are eligible to file their adjustment-of-status petitions with USCIS. Only applicants with priority dates earlier than the dates listed in the chart will be permitted to file their applications for adjustment of status in June.
Final Action Dates for Employment-Based Preference Cases:
Family-based immigrants will be required to use the Final Action Dates chart applicable to family-sponsored immigrants, contained in the June Visa Bulletin.
Travelers coming to the United States under the Visa Waiver Program are reminded that they must hold an e-passport or be at risk of being turned away upon entry.
Background: An e-passport is a secure passport with an embedded chip and marked with the international e-passport symbol.
The Visa Waiver Program is currently available to nationals of 38 countries and allows eligible nationals to apply for an ESTA instead of a visa for U.S. visits of up to 90 days. The e-passport requirement is one of several recent restrictions to the program.
BAL Analysis: Travelers accustomed to entering the U.S. with an ESTA should check their passports and ESTA status to make sure they meet the e-passport requirement and, if they have upgraded to an e-passport, that they have also applied for a new ESTA.
A federal court in Seattle has dismissed a class action lawsuit brought by employment-based immigrants who sued the State Department last year for suddenly revising its Visa Bulletin for October 2015, thus making them ineligible to apply for permanent residence. They claimed they relied on the initial bulletin that made them eligible to file, spending significant time and money preparing their petitions before the agency issued the revised bulletin.
Background: On Sept. 9, 2015, the State Department issued a Visa Bulletin that would have allowed tens of thousands of high-skilled immigrants to file adjustment-of-status applications at the beginning of October 2015. Two weeks later, the department reversed its policy and issued a revised bulletin rolling back the eligibility dates. The group of intending applicants filed a lawsuit in the U.S. District Court for the Western District of Washington, alleging that the revision violated the Administrative Procedure Act and seeking reinstatement of the original Visa Bulletin. The court held that it lacked jurisdiction over the matter because the revision to the Visa Bulletin did not constitute a “final agency action” covered by the Act.
BAL Analysis: The plaintiffs have not indicated whether they intend to appeal, but they are unlikely to prevail. Employment-based immigrants should continue to follow the current two-chart system in which the State Department publishes Final Action Dates and Dates for Filing charts. The Dates for Filing chart, however, does not take effect until U.S. Citizenship and Immigration Services confirms that there are a sufficient number of available visas and announces that the chart may be used.
IMPACT – MEDIUM
What is the change? A temporary visa exemption for nationals of Australia, Canada, Japan and the United States will go into effect starting June 1 ahead of the Olympic Games in Rio de Janeiro.
What does the change mean? From June 1 to Sept. 18, nationals of the four countries may visit Brazil for tourist purposes without a visa for stays of up to 90 days.
Business impact: Business activities are not permitted on the visa waiver. Anyone intending to conduct business, work, study or engage in other nontourist activities must apply for an appropriate visa at a Brazilian consulate.
Background: The government announced in January that visas would be temporarily lifted for the four countries to promote tourism before and during the Olympic Games. Eligible nationals will not need to apply for a visitor visa at a consulate and will instead have their passports stamped upon arrival. Individuals competing in the Olympics are not eligible for the visa waiver.
BAL Analysis: Travelers are reminded that the visa exemption should only be used by individuals who are traveling to Brazil for tourist purposes, not for business or other activities, and that it is valid for the period stamped in their passport and cannot be renewed.
This alert has been provided by the BAL Global Practice group in Brazil. For additional information, please contact brazil@bal.com.
A federal court on Friday dismissed the Washington Alliance of Technology Workers’ challenge to a 2008 Department of Homeland Security Optional Practical Training (OPT) rule, saying the matter is “moot” after a new rule took effect this week.
In August 2015, a judge on the U.S. District Court for the District of Columbia ruled that a 2008 regulation authorizing the extension of OPT for science, technology, engineering and mathematics (STEM) students was invalid due to procedural deficiencies, namely that the rule had not been subject to the standard rulemaking process allowing for a proposal and comment period. The court did, however, give DHS until Feb. 12 to issue a replacement rule following this process. DHS requested an extension of the deadline until May 10 after receiving an unprecedented number of comments on the proposed new rule published in October.
DHS released the text of the new rule in March and it took effect May 10. Because the new rule rendered the 2008 rule moot, the court on Friday dismissed WashTech’s lawsuit in a one-page per curiam order.
The new rule allows F-1 students with degrees in approved STEM fields to extend their OPT for an additional 24 months beyond the initial one-year OPT period. Students may be eligible for one additional STEM extension if they obtain a second U.S. STEM degree at a higher level. The rule imposes new reporting requirements and other obligations on students, designated school officials (DSOs), and employers, including a formal training plan signed by the employer and student.
BAL Analysis: Employers who need assistance and guidance with STEM OPT extensions should contact their BAL professional for specific advice.
Several employment-based categories, including India EB-2 and China EB-2 and EB-3 will significantly retrogress in June, according to the State Department’s June Visa Bulletin.
The State Department said the retrogressions of Final Action Dates are necessary because of extremely high volumes of adjustment-of-status applications submitted to U.S. Citizenship and Immigration Services in the past two months and the effort to hold visa numbers within the limits until the close of the fiscal year Sept. 30.
Key movements:
Other categories will not advance or retrogress. All EB-1 categories will remain current.
Additional notes: The India EB-2 category is expected to advance moderately from July through September. China EB-2 and EB-3 are not expected to advance in the next three months until new visa numbers become available Oct. 1.
Application Final Action Dates for Employment-Based Preference Cases:
Guatemala
Honduras
2016
2008
The State Department also released its Dates for Filing chart for June 2016. Applicants seeking to file for adjustment of status are reminded that the Dates for Filing chart does not take effect unless U.S. Citizenship and Immigration Services confirms it via a web posting in the coming week. To date, USCIS has not allowed applicants to use the Dates for Filing chart for filing adjustment of status applications.
The United States has reduced the validity period of the Electronic System for Travel Authorization for Greek citizens using the Visa Waiver Program to travel to the U.S.
Background: The Visa Waiver Program currently allows nationals of 38 countries, mostly in Europe, to travel to the U.S. for up to 90 days for business or tourism without a visa. Travelers using the program must be prescreened and obtain an ESTA, which is normally valid for two years.
The U.S. has recently tightened program criteria, including requiring e-passports and restricting certain dual nationals and those who have traveled recently to certain “countries of concern”.
BAL Analysis: The reduced validity is consistent with recent security enhancements to the program and the Department of Homeland Security’s increased scrutiny and review of countries participating in the program.
U.S. Citizenship and Immigration Services today published a proposed rule that would significantly raise immigration filing fees.
The proposed increases would take effect later this year and would affect employment-based petitions and related applications for foreign nationals and family members.
Key proposed fee increases:
A full schedule of proposed fee changes may be viewed here.
Additional proposed changes:
Background: USCIS signaled increases in immigration fees in April when it submitted proposed rulemaking for review by the Office of Management and Budget, indicating that “the current fee schedule does not adequately recover the full costs of services provided by USCIS.” Immigration fees are subject to review every two years and were last raised in 2010.
The agency stated that if it does not adjust the current fees to recover the full costs of immigration services it would be forced to reduce services, reversing recent progress in reducing case backlogs.
BAL Analysis: USCIS will accept comments for a 60-day period ending July 5. After comments are received and reviewed, the agency will publish a final rule. Companies and individuals should plan for increased government filing fees for immigration-related petitions. Those interested in submitting comments may contact their BAL professional or submit comments directly to USCIS.